The majority voted against two amendments introduced by Greens Senator Nick McKim that relate to the unauthorised disclosure of information.

Senator McKim explained that:

The amendments proposed reflect the recommendations made by the Australian Human Rights Commission [408 KB] and the Law Council of Australia [592 KB] in their submissions to the inquiry into this bill. The recommendations from the Australian Human Rights Commission aim to advance the bill's stated objective and enhance the bill's compatibility with human rights. The unauthorised disclosure of information under section 42 of the Australian Border Force Act carries a penalty of up to two years imprisonment. The Australian Human Rights Commission submitted that, given the adverse consequences associated with a criminal conviction, criminal penalties should only attach to the unauthorised disclosure when it harms essential public interests.

The majority voted against a motion introduced by Greens Senator Nick McKim, which means it failed.

What did the motion do?

The motion would have added to the usual second reading motion, which is a motion to agree with the main idea of the bill (in parliamentary jargon, it's a motion to read the bill for a second time):

At the end of the motion, add:

"but the Senate notes the chilling effect that section 42 of the Australian Border Force Act 2015 has had on the immigration debate in Australia and condemns the Government and the Opposition for introducing and supporting the existing section."

Senator McKim explained:

Section 42 of [the Australian Border Force Act] provides that it's an offence for someone who is or has been an entrusted person to make a record of or disclose protected information. The maximum penalty for the offence is imprisonment for two years.

This provision—which still exists as we debate here today, with a minor amendment delivered by the government with regard to medical professionals—was designed by the government and supported by the Labor Party, for no other reason than to suppress the true horrors of what is happening on Manus Island and Nauru and inside Australia's onshore immigration detention regime. It was designed to have, and had, a chilling effect on freedom of speech in this country. It was designed to prevent people from speaking out about what they witnessed, including many people who had either a professional or a moral obligation to do so. The current section 42 is a draconian measure, designed, as I said, to keep secret the horrors of what is happening on Manus Island and Nauru and inside Australia's onshore detention regime.

The majority agreed to pass the bills in the Senate (in parliamentary jargon, they voted in favour of giving the bills a third reading). The bills will now be sent back to the House of Representatives for the Members of Parliament to decide whether they agree with the Senators' amendments. If so, the bills will become law.

You can follow the bills progress through Parliament on the bills' websites (see under 'External links').

How to find out more about the bills

Go to the bills digest to learn more about what the bills do and what issues they raise.

Controversy

Clause 42 of the Australian Border Force Bill 2015 makes it an offence for an "entrusted person" (which includes Immigration and Border Protection workers) to make a record of confidential information or to disclose confidential information. See the bills digest for more information about the exceptions to this offence.

Comments in the media have suggested that this clause could lead to doctors being charged under this offence for revealing conditions in detention centres.

What did the amendment do?

This amendment relates to Clause 42 of the Australian Border Force Bill 2015, which makes it an offence for an "entrusted person" (which includes Immigration and Border Protection workers) to make a record of confidential information or to disclose confidential information.

The amendment I have circulated deals very specifically with that. It is very simple. It is not saying that everyone can go and blow their whistles as much as they want; it is saying that if there is any type of offence then it needs to be tested against the public interest. That is a decision that the courts should make. It is not a decision for the minister. ... This amendment is important to ensure that there is an independent arbiter, and it must be the courts that stand up for the right of the public service and the right of the Australian people to know what is in the public interest and what information their government is trying to hide from them.

Background to the amendment

Senator Hanson-Young's amendment reflects previous recommendations made by the Australian Law Reform Commission (ALRC) in 2010 in respect to a similar provision int he Crimes Act that applies generally to Commonwealth public servants. Just like Senator Hanson-Young's amendment, the ALRC had recommended that criminal sanctions in law should only apply where disclosure of information would or would likely harm an identifiable public interest. However, those recommendations have yet to be acted on.

Amendment text

(ba) the making of the record, or the disclosure, causes, is likely to cause, or is intended to cause, harm to a public interest.

How to find out more about the bills

Go to the bills digest to learn more about what the bills do and what issues they raise.

No

No

Not passed by a modest majority

How
"voted a mixture of for and against"
is worked out

The MP's votes count towards a weighted average where the most important votes get
50 points,
less important votes get
10 points,
and less important votes for which the MP was absent get
2 points.
In important votes the MP gets awarded the full
50 points
for voting the same as the policy,
0 points
for voting against the policy, and
25 points
for not voting. In less important votes, the MP gets
10 points
for voting with the policy,
0 points
for voting against, and
1
(out of 2)
if absent.

Then, the number gets converted to a simple english language phrase based on the range of values it's within.

No of votes

Points

Out of

Most important votes (50 points)

MP voted with policy

0

0

0

MP voted against policy

0

0

0

MP absent

1

25

50

Less important votes (10 points)

MP voted with policy

1

10

10

MP voted against policy

0

0

0

Less important absentees (2 points)

MP absent*

2

2

4

Total:

37

64

*Pressure of other work means MPs or
Senators are not always available to vote – it does not always
indicate they have abstained. Therefore, being absent on a less
important vote makes a disproportionatly small
difference.